Pfenning v. Lineman, No. 27S02-1006-CV-331, __ N.E.2d __ (Ind. Ct. App., May 18, 2011)

DICKSON, J.

Cassie Pfenning, injured by a golf ball at a golf outing when she was age sixteen, filed this damage action against multiple defendants: the Estate of Jerry A. Jones, her grandfather, who brought her to the event; Joseph E. Lineman, a golfer who hit the ball that struck her; Whitey’s 31 Club, Inc., a tavern in Marion, Indiana, that promoted the event; and the Marion Elks Country Club Lodge #195, operator of the golf course. After the trial court granted summary judgment in favor of each of the four defendants, the plaintiff appealed, claiming that genuine issues exist to preclude summary judgment on her various claims of general negligence, negligent supervision, and premises liability of the defendants. The Court of Appeals affirmed. Pfenning v. Lineman, 922 N.E.2d 45 (Ind. Ct. App. 2010). Because this Court has not previously addressed the issue of a sports participant’s liability to others, we granted transfer and now affirm summary judgment in favor of the golfer and the Elks but reverse summary judgment as to Whitey’s and the grandfather. We reject the concept that a participant in a sporting event owes no duty of care to protect others from inherent risks of the sport, but adopt instead the view that summary judgment is proper when the conduct of a sports participant is within the range of ordinary behavior of participants in the sport and therefore is reasonable as a matter of law.

. . . .

Although this Court has not addressed the issue, several decisions from the Indiana Court of Appeals, invoking varying and inconsistent rationales, have concluded that participants in athletic events owe no duty of care as to risks inherent in the sport and must refrain only from intentional or reckless infliction of injury to others.

. . . .

Significant variations thus can be seen among the decisions from our sister jurisdictions as they wrestle with the issue of liability for sports injuries. In resolving the issue for Indiana, a foremost consideration must be the Indiana General Assembly’s enactment of a comparative fault system and its explicit direction that “fault” includes assumption of risk and incurred risk. Ind. Code § 34-6-2-45(b). These concepts focus on a plaintiff’s venturousness and require a subjective determination. Smith, 796 N.E.2d at 244. As noted above, decisions of this Court have established that such considerations of a plaintiff’s incurred risk, even if evaluated by an objective standard, cannot be used to support a finding of no duty in a negligence action. See Heck, 659 N.E.2d at 505; Smith, 796 N.E.2d at 245. In contrast, the sports injury decisions of the Court of Appeals have employed consideration of the “inherent risks” of a sport to justify development of a no-duty rule. We view the evaluation of such inherent risks to be tantamount to an objective consideration of the risk of harm that a plaintiff undertakes and thus unsatisfactory because it violates the Comparative Fault Act and the precedent of this Court.

As to judicial policy, however, we are in agreement with our colleagues in the Court of Appeals and many of the courts of our fellow states that strong public policy considerations favor the encouragement of participation in athletic activities and the discouragement of excessive litigation of claims by persons who suffer injuries from participants’ conduct.  . . . Sound policy reasons support “affording enhanced protection against liability to co-participants in sports events.” Bowman, 853 N.E.2d at 992. Athletic activity by its nature involves strenuous and often inexact and imprecise physical activity that may somewhat increase the normal risks attendant to the activities of ordinary life outside the sports arena, but this does not render unreasonable the ordinary conduct involved in such sporting activities.

We conclude that sound judicial policy can be achieved within the framework of existing Indiana statutory law and jurisprudence. As noted previously, there are three principal elements in a claim for negligence: duty, breach of duty, and a proximately caused injury. When there is no genuine issue of material fact and any one of these elements is clearly absent, summary judgment is appropriate. Colen v. Pride Vending Serv., 654 N.E.2d 1159, 1162 (Ind. Ct. App. 1995), trans. denied. But rather than focusing upon the inherent risks of a sport as a basis for finding no duty, which violates Indiana statutory and decisional law, the same policy objectives can be achieved without inconsistency with statutory and case law by looking to the element of breach of duty, which is determined by the reasonableness under the circumstances of the actions of the alleged tortfeasor. Breach of duty usually involves an evaluation of reasonableness and thus is usually a question to be determined by the finder of fact in negligence cases.  . . . But in cases involving sports injuries, and in such cases only, we conclude that a limited new rule should apply acknowledging that reasonableness may be found by the court as a matter of law. As noted above, the sports participant engages in physical activity that is often inexact and imprecise and done in close proximity to others, thus creating an enhanced possibility of injury to others. The general nature of the conduct reasonable and appropriate for a participant in a particular sporting activity is usually commonly understood and subject to ascertainment as a matter of law.  . . . .

We hold that, in negligence claims against a participant in a sports activity, if the conduct of such participant is within the range of ordinary behavior of participants in the sport, the conduct is reasonable as a matter of law and does not constitute a breach of duty.  [Footnote omitted.]

In any sporting activity, however, a participant’s particular conduct may exceed the ambit of such reasonableness as a matter of law if the “participant either intentionally caused injury or engaged in [reckless] conduct.”  . . . Such intentional or reckless infliction of injury may be found to be a breach of duty.

As to the golfer’s hitting an errant drive which resulted in the plaintiff’s injury, such conduct is clearly within the range of ordinary behavior of golfers and thus is reasonable as a matter of law and does not establish the element of breach required for a negligence action.

The plaintiff’s action against the golfer is also predicated upon her claims that he hit an errant drive when he knew of the presence of bystanders on the golf course and that he failed to yell “fore” in a manner sufficient to enable her to avoid being struck. Both the golfer and another golfer in his foursome state that he yelled “fore” when his shot hooked to the left. But neither the plaintiff nor the woman with her on the beverage cart heard any warning. With respect to the alleged failure to warn, the plaintiff does not present any evidence directly disputing the golfer’s claim that he yelled “fore,” only that she didn’t hear it, but her undisputed failure to hear the warning may arguably warrant an inference disputing the golfer’s assertion. The parties agree that conventional golf etiquette includes calling “fore” when a golfer’s shot may endanger others. But whether giving such warning can be effective in providing protection is dependent upon a variety of factors including the distance involved, the velocity and trajectory of the ball, the course topography, the presence of wind and ambient sound sources, the existence of foliage or other impediments to sound, the timing and volume of the golfer’s shout of “fore,” and the flexibility of movement possible within the available seconds for persons at risk to avoid or protect themselves from a ball coming from an unknown direction.

For each of two reasons, we find that neither the omission nor manner of yelling “fore” can be a proper basis for a claim of negligence in golf ball injury cases. First, the myriad of factors that relate to the effectiveness of such a warning at any particular time will almost inevitably call for speculation and surmise, precluding the establishment of the element of proximate cause necessary for liability. Second, we find that a golfer’s yelling “fore” or failure to do so, and the manner of doing so, is within the range of ordinary behavior of golfers, and that, as a matter of law, neither the manner of doing so nor the failure to do so constitutes a breach sufficient to support a claim for negligence.

Shepard, C.J., and Sullivan, Rucker, and David, JJ., concur.

 

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